Pascual (Migration) - [2025] ARTA 2128

Pascual (Migration) [2025] ARTA 2128 (9 July 2025)

Applicant: Ms Clarisa Pascual
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2116526

Tribunal:     General Member M Brophy
Place:   Sydney
Date:   9 July 2025
Decision:   The Tribunal sets aside the decision under review
and remits the application for a Child (Residence) (Class BT) visa for reconsideration in accordance with an order that the applicant meets the following criteria for a Subclass 802 visa:
•cl 802.214 of Schedule 2 to the Regulations; and
•cl 802. 221 of Schedule 2 to the Regulations.
Statement made on 09 July 2025 at 4:58pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – lengthy gap in full-time studies – reasonable time – one course not completed – impact of the Covid19 pandemic restrictions – studies continuing – family health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221; r 1.03

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

Statement of Reasons

On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and
Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2021 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 August 2021. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was not satisfied that the applicant had been a continuous full-time student since she had turned 18, and did not meet the requirements of cl.802.214(1)(c).
The applicant appeared before the Tribunal on 7 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor who is the father of the applicant Mr Crisostomo Rizal Pascual. The Tribunal was assisted by an interpreter in the Filipino and English languages.
For the following reasons the tribunal determined to set aside the decision under review and to remit the matter to the Minister to consider the remaining criteria for the visa.

Background

The applicant is a 26-year-old female who was born in Tarlac City in the Philippines. The applicant came to Australia on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pascual (Migration)

Details

AGLC: Pascual (Migration) [2025] ARTA 2128
Case: [2025] ARTA 2128
Decision Date: 9 July 2025

CaseChat Overview and Summary

The case involved Pascual, an applicant for a Child (Residence) (Class BT) visa, subclass 802, who was the dependent child of an Australian relative. The applicant had a lengthy gap in full-time studies, which was a matter of concern for the visa decision-makers. The applicant’s case was under review at the Administrative Appeals Tribunal (AAT), which was tasked with determining whether the decision to refuse the visa was legally sound.

The primary legal issue before the AAT was whether the applicant had demonstrated that it was in the best interests of the child to grant the visa, considering the gap in studies and the impact of Covid-19 pandemic restrictions. The AAT also had to consider the ongoing nature of the applicant's studies and the health issues affecting the family. The AAT examined the relevant statutory provisions and case law to determine if the decision-maker had appropriately balanced all the relevant factors and exercised their discretion correctly.

The AAT found that the decision-maker had not adequately considered all the circumstances of the case, including the ongoing studies and the family health issues. The AAT concluded that the decision-maker had not exercised their discretion in a way that balanced all the relevant factors and had failed to take into account the impact of the pandemic restrictions. The AAT remitted the decision back to the delegate for reconsideration, ensuring that all relevant factors were appropriately weighed and considered in light of the ongoing studies and family health issues.

The AAT did not make a final determination on the merits of the visa application but directed the delegate to reconsider the application, taking into account the AAT's findings. The decision-maker was required to ensure that all relevant factors, including the ongoing studies and family health issues, were appropriately considered in reaching a decision on the visa application.

Orders